McCLINTOCK, Justice.
Plaintiff, Michael L. Doyle, was injured when an unattended truck ran over him, crushing his legs. He brought suit against Lenise Williams, the driver of the truck and a fellow employee, and Gibson A. Barnette, the president, director, shareholder of plaintiff's corporate employer and a fellow employee. The jury found that Barnette was 100 percent culpably negligent and awarded Doyle $84,000.00 in damages. Barnette has raised the following issues on appeal:
1. The trial court erred in denying his motion to dismiss because defendant is immune from suit under the Wyoming Workers' Compensation Act; he is not a coemployee.
2. Even if this court finds that defendant is a coemployee, he did not have a duty to provide reasonably safe equipment.
3. The doctrine of assumption of the risk bars recovery.
4. The trial judge erred when he refused to give defendant's offered Instructions A, B and C.
5. There is insufficient evidence to support the jury's finding of culpable negligence.
6. It was error to instruct the jury that a violation of a statute is evidence of culpable negligence.
7. The trial court erred in failing to grant a mistrial when plaintiff's attorney asked on voir dire if any of the jurors worked for insurance companies and also "based upon the confusion which arose as a result of the district court's instructions to the jury that insurance was not involved in the matter."
8. The trial judge erred in failing to instruct the jury that the award would not be subject to federal income tax.
9. The jury's failure to answer question number 5 of the special verdict form that
10. The award of damages is excessive and contrary to the evidence presented.
Michael Doyle went to work for Casper Mud Service on August 16, 1976 and was employed by this company until he was injured on October 21, 1977. Casper Mud Service sells and delivers products that are used primarily in connection with drilling rigs.
On October 21, 1977 Doyle and Williams, a fellow employee, were to deliver cement to a uranium rig located near Linch, Wyoming. Doyle was driving a 1976 two-ton Ford truck, and Williams was driving a 1973 two-ton GMC truck. This was the first time Williams had driven a truck for Casper Mud Service. Each truck was loaded with 160 sacks of cement. In order to reach the drilling location, these two men had to unlock and open a gate that was secured with a padlock. Because Doyle had delivered products to this drilling site before, he knew the combination to the lock, so that when they arrived at the gate, Doyle unlocked and opened the gate. After opening the gate, Doyle drove his truck through the gate and parked his truck on a slight incline immediately north of the gate. However, after Doyle drove through, the gate swung half-way shut. Doyle got out of his truck and reopened the gate. Williams drove through the gate, stopped his truck, set the emergency brake and waited a few minutes to see if the truck would roll. He then got out of the truck and walked back to the gate where Doyle was, so that he could learn the combination of the lock. A short time after Williams got out of the 1973 GMC truck, it rolled backwards, knocked Michael Doyle to the ground and ran over his legs.
IMMUNITY FROM SUIT UNDER THE WYOMING WORKER'S COMPENSATION ACT
The first question is whether the Wyoming Worker's Compensation Act has granted Barnette immunity. Because this is a question of first impression for this court, we must look to the language of the Act, its history and purpose.
Worker's compensation laws were enacted during the later part of the nineteenth century in order to provide social insurance for victims of industrial accidents, and this compensation is not based upon fault or the breach of a duty owed by the employer to the injured employee. These laws were not enacted to abrogate existing common-law remedies that protected injured workers. At the time these laws were enacted, it has been estimated that only one-fourth of the injured workers were being compensated for their injuries under the limited common-law remedies. Boggs v. Blue Diamond Coal Company, 6 Cir., 590 F.2d 655, 658 (1979), cert. denied 444 U.S. 836, 100 S.Ct. 71, 62 L.Ed.2d 47.
The lack of recovery has been attributed to
Since the worker's compensation laws were enacted, the common-law tort principles, the defenses of assumption of the risk, contributory negligence and the fellow-servant rule have been narrowly construed or abolished. However, the benefits received under such laws have remained low, "and the compromise which was extended immunity from common-law liability to employers has remained in place." Boggs, supra, 590 F.2d at 659. As the United States Congress stated in the Occupational Safety and Health Act of 1970, Public Law 91-596 — Dec. 29, 1970 — Sec. 27(a)(1)(B), (29 U.S.C.A. § 676(a)(1)(B)):
The courts have responded to this inadequacy by "liberally construing the coverage provisions of workmen's compensation acts while narrowly construing the immunity provisions." Boggs, supra, 590 F.2d 659. This court, like the majority of courts, has narrowly construed the immunity provisions of our own act. For example, in Markle v. Williamson, Wyo., 518 P.2d 621 (1974), this court held that an injured employee has a common-law right to bring suit against a coemployee and that the worker's compensation statutes do not grant coworkers immunity from suit.
Here, Barnette contends that he is immune from suit because he is the president, director and owner of 50 percent of the stock of Barnette Enterprises, a family owned corporation, and he is not an employee of the corporation as required by the Wyoming Worker's Compensation Act. Plaintiff argues that Barnette is not immune because he was in charge of the day-to-day operation of the company and that Barnette failed to have the emergency brake on the 1973 GMC truck repaired after being advised that the brake was not working.
During trial, Barnette testified that "Casper Mud Service is a division of Barnette Enterprises," that he is a coemployee of Casper Mud Service and that he receives a salary from that company. In a deposition, Charles Doyle, a coemployee, testified that Barnette ran Casper Mud Service and that Barnette was at the company almost every day.
There is no doubt that the Wyoming Worker's Compensation Act would preclude a suit against the corporate employer unless the employment was unlawful or illegal. Jordan v. Delta Drilling Company, Wyo., 541 P.2d 39, 48 (1975). However, while the Act creates liability without fault, it also allows an injured employee to bring a third-party action against coemployees who are personally responsible for the victim's injuries if these coemployees were culpably negligent. § 27-12-103, W.S. 1977; Abeyta v. Hensley, Wyo., 595 P.2d 71, 73-74 (1979). The question then is, where does Mr. Barnette stand when he is both an officer and stockholder in the corporation and a coemployee?
In raising the contention that he is immune from suit because of the Wyoming Worker's Compensation Act, Barnette has ignored the legal entity of Barnette Enterprises, Inc. Presumably, Barnette and his wife created this legal entity for the purpose of protecting themselves from personal liability for the obligations of the corporation, the acts of the corporation's employees, and worker's compensation benefits. After the corporation was formed, Barnette undertook to work for Casper Mud Service, a division of the corporation, and he received a salary from that company. Therefore, when Barnette became an employee of his corporation, he assumed the additional role of a coemployee. And as a coemployee, he is liable for the breach of any duty that he owes to his fellow employees. Cole v. Golemi, La. App., 271 So.2d 65, 68 (1972); Stevens v. Lewis, 118 N.H. 367, 387 A.2d 637, 638 (1978). As was said in the latter case:
Under the provisions of the Wyoming Worker's Compensation Act, Doyle is granted the right to bring an action against Barnette. Section 27-12-103, supra, of the Wyoming Worker's Compensation Act, provides in pertinent part:
The term "employee" is defined in the Wyoming Worker's Compensation Act in § 27-12-102(a)(viii), W.S. 1977, as follows:
"Employee," as the term is used in § 27-12-102, includes corporate officers. This Act does not bar an injured employee from bringing an action against a coemployee who is also a corporate officer, if that coemployee was culpably negligent and he owed the plaintiff a duty of care. This result is consistent with the majority of courts that have considered the issue. As
An officer, director and shareholder of the corporate employer who is also a coemployee is not granted immunity by the worker's compensation act because such immunity would "confer upon a workman freedom to neglect his duty towards a fellow employee and immunize him against all liability for damages proximately caused by his negligence." Hockett v. Chapman, 69 N.M. 324, 366 P.2d 850, 853 (1961). Cited with approval in Markle, supra, 518 P.2d at 623.
DUTY OWED TO THE PLAINTIFF BY A COEMPLOYEE
Having determined that Barnette is not immune from suit, the next question is whether Barnette owed plaintiff a duty under the facts of this case. Barnette contends that even if this court finds that he is not immune from suit, he cannot be held personally liable for failure to provide safe working conditions. Defendant bases this contention upon state court decisions holding that a coemployee is not to be held personally liable when the negligence claimed arises out of a failure to provide safe working conditions. Garchek v. Norton Co., 67 Wis.2d 125, 226 N.W.2d 432 (1975).
While we do not deny the fact that some jurisdictions have supported defendant's contention, defendant has failed to consider that this court has recently answered this question in Abeyta v. Hensley, supra, 595 P.2d 71. In Abeyta, 595 P.2d at 74, we adopted the rule set forth in Restatement of Agency 2d § 354. This section provides:
As we stated in Abeyta, supra, 595 P.2d at 74, in order to determine if there was a duty owed, the court must consider the
We begin our inquiry into the question of whether Barnette owed a duty to Doyle, keeping in mind the often-quoted appellate rule that every favorable inference is to be given to the successful party. Upon appeal this court is required to resolve all conflicts in the evidence in favor of the successful party. True v. Hi-Plains Elevator Machinery, Inc., Wyo., 577 P.2d 991, 996 (1978). This court cannot substitute its judgment for that of the trial court's findings of fact, and even if there are no specific findings of fact a judgment carries with it every finding of fact that is reasonably supported by the evidence. True, supra, 577 P.2d at 996.
Barnette testified that he was in charge of managing the affairs of Casper Mud Service and that he had the authority to have the equipment repaired. And, while Barnette denied that he was ever informed that the emergency brake was not working on the 1973 GMC two-ton truck, Dennis Booth, a fellow employee, testified that he told Barnette that the emergency brake was not working. Booth testified that after he attempted to use the emergency brake on the 1973 GMC truck and it did not work, he told Barnette he was concerned for his own safety because the brake did
Booth further testified that Barnette did not "come right out and say he would get the repairs made."
In rejecting Barnette's contention the trial judge, in a decision letter, stated:
We agree with the trial judge. There was sufficient evidence presented at trial to support a finding that the defendant owed a duty to plaintiff to furnish reasonably safe equipment.
THE DOCTRINE OF ASSUMPTION OF RISK WILL NOT BAR RECOVERY
The next question for our consideration is whether the doctrine of assumption of the risk, as operating to bar recovery, has continuing viability in the State of Wyoming where an unsafe working condition was the direct cause of an employee's injuries or death. Defendant contends that
The judicially created doctrine of assumption of the risk was developed "... to insulate the employer as much as possible from bearing the `human overhead' which is an inevitable part of the cost — to someone — of the doing of industrialized business." Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 58-59, 63 S.Ct. 444, 447, 87 L.Ed. 610 (1943). The first notable discussion of this doctrine appeared in Priestley v. Fowler [Ex. 1837] 3 M. & W. 1, 150 Eng.Rep. 1030. Priestley involved a suit brought by a butcher against his employer. The employer directed the plaintiff to accompany certain goods of the employer that were being carried in a van. The van overturned injuring the plaintiff. The plaintiff brought suit against his employer alleging that the employer failed to see that the van was in good repair and that it was not overloaded. This failure resulted in the injury suffered by the plaintiff. Even though the jury returned a verdict in favor of the plaintiff, the court reversed the decision. In so doing the court "laid the doctrinal foundation that would be interposed to defeat in the common law courts the claims of countless injured workers in the ensuing industrial revolution." Lyons v. Redding Construction Company, 83 Wn.2d 86, 515 P.2d 821, 822 (1973).
The rationale behind the Priestley decision is as follows:
In an effort to alleviate the injustices created by this harsh rule, the English Parliament enacted the Employer's Liability Act, Stats. 43 & 44 Victoria, c. 42. This action was not effective because the English courts merely began to construe the act and employed the doctrine of volenti non fit injuria ["damage suffered by consent is not a cause of action," H. Broom, Legal Maxims 181 (10th ed. R. Kersley 1939)]
American courts, following the example of the English courts, also adopted the same attitude: in order to encourage industrial growth the employee must carry the burden of injuries incurred while the employee is acting within the scope of employment. This rule of law was set forth in Farwell v. Boston and Worcester Rail Road Corp., 45 Mass. (4 Metc.) 49, 57 (1842) as follows:
The court goes on to point out that the rationale for this rule is that
The rule that an injured worker must bear the burden also was adopted by the United States Supreme Court. In Tuttle v. Detroit, Grand Haven and Milwaukee Railway, 122 U.S. 189, 196, 7 S.Ct. 1166, 1169, 30 L.Ed. 1114 (1887), the Court stated that this rule is
The United States Supreme Court did not recognize "that industry should not be nurtured at the expense of human suffering" until 1942. Lyons, supra, 515 P.2d at 823. In Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68-69, 63 S.Ct. 444, 452, 87 L.Ed. 610 (1942), Mr. Justice Frankfurter, in a concurring opinion, stated:
Beginning with the landmark decision in Meistrich v. Casino Arena Attractions, Inc., 31 N.J. 44, 155 A.2d 90 (1959), in which the Supreme Court of New Jersey abolished the defense of assumption of the risk as a complete bar to a negligence action in cases other than those involving an expressed contract providing for no liability, Lyons, supra, 515 P.2d 823-824, a number of other courts have also abrogated the doctrine so far as it acts as a complete bar to recovery. In Siragusa v. Swedish Hospital, 60 Wn.2d 310, 373 P.2d 767, 772-773 (1962), for example, the court held that an employee does not assume the risks arising from the employer's negligence. The rationale given for this decision, with which we are in complete agreement, is as follows:
The court goes on to point out that
While recognizing the rule that an employer has a duty to provide a reasonably safe place to work and reasonably safe equipment, this court in the past has held that the doctrine of assumption of the risk will bar an injured employee from recovering in a negligence action brought against the employer. However, our review of the cases reveals that this court has historically attempted to limit the doctrine of assumption of the risk. For example, in Boatman v. Miles, 27 Wyo. 481, 199 P. 933 (1921), this court affirmed a lower court judgment for damages granted to an employee against his employer. The employee was injured by a vicious stallion owned by his employer. This court initially found that the evidence presented at trial warranted a finding that the employer "was negligent, and liable for the injuries received by appellee, unless the latter assumed the risk or was guilty of contributory negligence." Boatman, supra, 199 P. at 935. The question before the court was whether the employee assumed the risk.
In discussing the doctrine of assumption of the risk, this court stated:
In Chicago & N.W. Ry. Co. v. Ott, 33 Wyo. 200, 237 P. 238 (1925), reh. denied 238 P. 287, certiorari denied 269 U.S. 585, 46 S.Ct. 201, 70 L.Ed. 425, this court once again affirmed the lower court's judgment awarding an injured employee damages against his employer. The employee was injured when a door fell on him while he was unloading rails. The crane used in unloading the rails was too short, causing the rails to swing against the door that fell upon the plaintiff. On appeal the defendant contended that the plaintiff assumed the risk and, therefore, was barred from recovery as a matter of law. In rejecting the defendant's contention, this court stated:
The question of whether there was sufficient evidence of contributory negligence and assumption of the risk to prevent an injured employee from recovering against his employer's servant was addressed by this court in Rocky Mountain Trucking Company v. Taylor, 79 Wyo. 461, 335 P.2d 448 (1959). This case involved an oil company employee's suit for injuries sustained when a large metal tank that was being raised by a winch of the trucking company hired to move the oil company's rig was suddenly lowered and crushed the employee's hand. The employee was placing boards under the tank at the time the injury occurred. In affirming the award of damages granted to the employee by the lower court, this court stated:
While historically the decisions handed down by this court appear to attempt to limit the harsh result of the doctrine of assumption of the risk, this court has more recently taken a stricter view of the doctrine. For example, in Berry v. Iowa Mid-West Land and Livestock Co., Wyo., 424 P.2d 409 (1967), this court affirmed the trial court's judgment for the employer, notwithstanding the jury verdict for the employee. The employee was barred from recovery from the employer for electric shock and burns. This court held,
The rules of law cited by this court in support of its determination that as a matter of law the plaintiff was not entitled to recover because all danger was open and obvious, are as follows:
In both Mellor v. Ten Sleep Cattle Company, Wyo., 550 P.2d 500 (1976), and Abeyta v. Hensley, supra, 595 P.2d 71, the traditional doctrine of assumption of the risk, i.e., that "a master is not liable to his servant for harm caused by unsafe conditions of employment if the servant, being cognizant of the risks, voluntarily enters or continues in the employment," Abeyta, 595 P.2d at 75, has been acknowledged. However, these cases were decided upon other grounds. In Mellor, supra, 550 P.2d at 505, this court held that the employer was not negligent because "there is no reason to believe that the employer should have anticipated the necessity of more tools and more men in order that this operation would be conducted safely." And in Abeyta, supra, 595 P.2d at 75, we held "that there was no evidence that Hensley failed to furnish Abeyta with a safe place to work." The plaintiffs were
While this court in the past has expounded the rule that an employee is barred from recovery if he assumes the risk, the absolute defense of assumption of the risk is no longer viable in this state. This court has long held that there is no distinction between the doctrines of assumption of the risk and contributory negligence. Ford Motor Company v. Arguello, Wyo., 382 P.2d 886, 891 (1963). Until the enactment of the comparative-negligence statute, § 1-1-109, W.S. 1977, in 1973, this court held that both defenses were absolute bars to recovery in negligence suits. Brittain v. Booth, Wyo., 601 P.2d 532, 534 (1979).
However, the comparative-negligence statute has abolished this harsh result by requiring in pertinent part that
Just as contributory negligence is no longer a complete defense, this court has ruled that, "assumption of risk, as a form of contributory negligence, is not an absolute defense to a negligence action, but is a basis for apportionment of fault." Brittain v. Booth, supra, 601 P.2d at 534. We cannot, therefore, agree with Barnette's contention that as a matter of law Doyle should be barred from recovery.
Our departure from precedent is compelled by both public policy and the legislative enactment. The only question for submission to the jury on the issue of plaintiff's negligence is whether the plaintiff was, under the circumstances, negligent with regard to his own safety. It is for the jury to balance the relative measurements of fault.
In the case at bar, the jury was instructed that if they found Barnette had a duty to furnish safe equipment, his failure to do so created an unreasonable risk of harm to the plaintiff and furthermore if Barnette was culpably negligent, they could "consider whether Michael Doyle, knowing of the risk, voluntarily entered or continued in the employment of the common employer, in assessing the relative negligence, if any, of the parties." While we believe that the jury should not have been asked to compare culpable negligence to ordinary negligence, we do not believe that by so instructing reversible error was committed. The error was harmless because the jury found that Doyle was zero percent negligent.
We have recently held that
In Danculovich, supra, plaintiffs were seeking both compensatory and punitive damages arising out of a one-automobile accident.
Because ordinary negligence cannot be compared to culpable negligence, a jury must first be required to apportion the ordinary negligence of both the plaintiff and the defendant under the comparative negligence statute, § 1-1-109. If the jury finds that the plaintiff's contributory negligence
REFUSAL TO INSTRUCT ON THE DOCTRINE OF ASSUMPTION OF THE RISK AS A COMPLETE BAR TO RECOVERY
Defendant contends that the trial court erred when it refused defendant's offered Instructions A, B and C. These instructions generally provide that plaintiff cannot recover if the jury finds that he assumed the risk. As we have just discussed, the doctrine of assumption of the risk will not bar recovery in this state; therefore, these offered instructions are incorrect statements of the law. As this court has long held, instructions containing incorrect statements of the law are properly refused. Benson v. State, Wyo., 571 P.2d 595, 597 (1977).
SUFFICIENT EVIDENCE PRESENT TO PROVE CULPABLE NEGLIGENCE
Defendant's fourth assignment of error is that there is insufficient evidence to support the jury's finding of culpable negligence. There is no allegation that the jury was improperly instructed as to the elements of culpable negligence.
While this court has not defined the term "culpable negligence" as used in § 27-12-103, supra, this court has defined the same term as used in Art. 10, Sec. 4, of the Wyoming Constitution that applies to the actions of an injured employee. Hamilton v. Swigart Coal Mine, 59 Wyo. 485, 143 P.2d 203 (1943). In Fuhs v. Swenson, 58 Wyo. 293, 131 P.2d 333, 338 (1942), this court in essence held that the term "culpable negligence" means willful and serious misconduct. In Hamilton, 143 P.2d at 206, this court, in interpreting the Fuhs decision, adopted the definition of "willful and serious misconduct" that was set forth in Gonier v. Chase Companies, 97 Conn. 46, 115 A. 677, 680 (1921). This definition provides in part that culpable negligence is misconduct that exposes the injured worker to serious danger. This misconduct must be willful, "that is, such as is done purposely, with knowledge — or misconduct of such a character as to evince a reckless disregard of consequences." Hamilton, supra, 143 P.2d at 206. A defendant is not culpably negligent if his misconduct arose from a "thoughtless, heedless or inadvertent" act, or an error in judgment. Hamilton, supra, 143 P.2d at 206.
In the case at bar, there is direct evidence, as we discussed earlier, that Dennis Booth told Barnette the emergency brake on the 1973 GMC truck was not working and that Booth also told Barnette that because of this condition Booth was concerned
Barnette also contends that he cannot be held liable under the theory of culpable negligence because it was not shown that he knew or should have known that Williams was an incompetent employee or that Williams was, in fact, incompetent, relying upon Abeyta, supra, 595 P.2d 71, and Mellor, supra, 550 P.2d 500. Furthermore, defendant contends that the trial judge erred in failing to instruct the jury upon this theory.
In Count One of his complaint, plaintiff alleged that Barnette was culpably negligent in hiring Williams to operate trucks for Casper Mud Service. Count Two of the complaint alleges that Barnette was culpably negligent because he refused to repair the braking system on the 1973 GMC truck. The jury was instructed as follows:
We do not agree with defendant that Abeyta, supra, 595 P.2d 71, or Mellor, supra, 550 P.2d 500, require that plaintiff present evidence sufficient to prove the allegations in both Counts One and Two in order to prove culpable negligence. As we have already discussed, there is sufficient evidence in the record to support a finding that defendant was culpably negligent in failing to have the defective brake repaired and, therefore, we feel that proof of one act amounting to culpable negligence is sufficient.
INSTRUCTION CONCERNING THE VIOLATION OF A STATUTE
While defendant contends that the trial judge erred in instructing the jury that a violation of a statute is evidence of negligence when the standard is one of culpable negligence, he has failed to present any authority or cogent argument in support of this contention. We have consistently condemned this practice and, as stated in Scherling v. Kilgore, Wyo., 599 P.2d 1352, 1359 (1979), we will not consider alleged error that is supported only with a perfunctory argument and no authority.
VOIR DIRE EXAMINATION OF THE JURY CONCERNING EMPLOYMENT WITH INSURANCE COMPANIES
Plaintiff's counsel, during voir dire, asked the jurors collectively the following question:
Defendant's counsel immediately approached the bench and moved for a mistrial. The jury was dismissed and the trial judge heard argument from counsel. Neither the bench conference nor the conference subsequently held was reported and we have no way of determining what transpired during these discussions.
At various points in the transcript, plaintiff's counsel attempted to state for the record what had transpired during these conferences; however, these attempts were objected to by defense counsel. The incomplete state of the record and the confusion created by counsel's failure to have the court reporter present could easily have been averted. Bench and chamber conferences held during trial should always be recorded.
At some point later in the proceedings, the trial judge stated that during the conferences after the trial judge denied defendant's
Shortly after the jurors were so instructed, plaintiff's counsel asked the jurors the following questions:
One juror then asked:
After another bench conference and a conference in chambers, both of which were recorded, the trial judge instructed the jury that although he would like to be able to answer all of the jurors' questions there are times when that cannot be done. He told the jury that "we noted that in this case insurance is not involved. I think the Court ought to leave it there without attempting to explain further or going into detail." He then instructed the jurors their duty was to
Defendant contends that he was prejudiced by the question asked by juror Simon following the court's instruction that insurance was not involved in this case. He further contends that plaintiff's counsel did not ask the question concerning insurance company employment in good faith because counsel knew that there was no insurance, and that the jurors were confused and prejudiced by the trial judge's instructions. Defendant concludes that he "suffered prejudice by virtue of the jury's verdict in the amount of $84,000.00 as punishment for not having insurance coverage."
Counsel has the right to inquire as to a prospective juror's employment with an insurance company. Spillane v. Wright, 127 Colo. 580, 259 P.2d 1078, 1082 (1953). While we recognize that it is prejudicial error for counsel to inform the jury that there is insurance coverage, Eagan v. O'Malley, 45 Wyo. 505, 21 P.2d 821, 822
Furthermore, as was stated in Gerard v. State, Wyo., 511 P.2d 99, 100, (1973):
In Spillane, supra, 259 P.2d 1078, the trial judge allowed the plaintiff to inquire on voir dire as to the jurors' interest in any insurance company even though the trial judge had been informed that the defendant was not covered by liability insurance. In rejecting defendant's contention that the trial court erred, the Colorado Supreme Court stated:
Finally, while the juror's question in the case at bar demonstrated that the juror was concerned because there was no liability insurance, we believe the judge's subsequent cautionary instruction, instructing the jury that they were to be concerned only with the facts presented in the case and the questions presented to them, was sufficient. We cannot say that any material prejudice resulted from the juror's question and we must also assume that the jury followed this instruction. If there was error, which we seriously doubt, it was cured by the instruction. Madrid v. State, Wyo., 592 P.2d 709, 711 (1979).
FAILURE TO INSTRUCT THE JURY THAT THE AWARD WOULD NOT BE SUBJECT TO FEDERAL INCOME TAXES
Defendant next contends that the trial judge erred in refusing to instruct the jury that the award would not be subject to federal income taxes. Defendant relies upon Norfolk & Western Railway Company v. Liepelt, 444 U.S. 490, 100 S.Ct. 755, 62 L.Ed.2d 689, reh. denied 445 U.S. 972, 100 S.Ct. 1667, 64 L.Ed.2d 250 (1980). While Norfolk & Western Railway Company does stand for the proposition that a jury must be so instructed, we cannot agree with defendant that this case controls our disposition of this question.
The question of whether Norfolk & Western Railway Company requires state courts to instruct juries, in cases controlled by state law, that an award is not subject to federal income taxes was recently addressed by the Fifth Circuit Court of Appeals in Croce v. Bromley Corporation, 5 Cir., 623 F.2d 1084 (1980). In rejecting the defendant's contention that the decision in Norfolk & Western Railway Company was controlling, the Fifth Circuit states:
"`
Id. 100 S.Ct. at 757 and n. 5 (emphasis added). In the instant case federal concerns are lacking; this wrongful death action is a statutory creation of the state, and the measure of damages to be recovered, as we noted above, ... is governed by state law. Nor is the need for uniformity throughout the United States, which was `[o]ne of the purposes of the Federal Employer's Liability Act,' id., 100 S.Ct. at 757 n. 5, implicated in a cause of action brought to vindicate a state-created right. Despite some broad language approving an instruction that informs the jury that an award of damages will not be subject to income tax, see id. 100 S.Ct. at 759, there is no suggestion that the Supreme Court in Liepelt intended to require a trial judge to give such an instruction in wrongful death actions predicated upon statutes." Croce v. Bromley Corporation, 5 Cir., 623 F.2d 1084, 1096-1097 (1980). Also see Vasina v. Grumman Corporation, E.D.N.Y., 492 F.Supp. 943, 944-945 (1980).
Because the issue is procedural and does not involve a federal question, we find that Norfolk & Western Railway Company does not control the resolution of this issue. However, this court has never addressed the question of whether a jury should be instructed that an award is not subject to federal income tax. In the absence of controlling authority, we must look to the other state courts for guidance.
The great majority of state courts that have addressed the question of whether a trial judge is required to instruct a jury that an award is not subject to federal taxation have held that no such instruction is required. Coleman v. New York City Transit Authority, 37 N.Y.2d 137, 371 N.Y.S.2d 663, 670, 332 N.E.2d 850, 855 (1975); Damages — Considering Income Taxes, 63 A.L.R.2d 1393, 1408 [§ 6b].
For example, in Coleman, supra, the court rejected the defendant's contention that the trial court erred in failing to instruct the jury that the damage award would not be subject to either federal or state income taxes. The rationale for such a rule was expressed by Chief Judge Breitel:
The Supreme Court of Illinois has set forth the following reasons for rejecting the defendant's contention that the jury must be instructed as to the fact that an award is not subject to federal income tax:
The Supreme Court of Illinois has also stated:
The minority of state courts that have held that it is error for the trial judge to fail to instruct on the subject of federal income taxes have for the most part premised this result upon the following reason:
Following the lead of the majority of state courts that have decided the issue, we do not believe a trial judge is required to instruct a jury that an award will not be subject to federal income taxes. We so hold because we do not believe that such an instruction is material to the proper determination of damages; nor do we believe that a jury should be instructed on federal taxes when it is not also instructed as to the effect of the cost of attorneys fees, the costs incurred in preparing the case or the various types of insurance that may be involved. The trial judge in the case at bar correctly refused this offered instruction.
JURY'S FAILURE TO ANSWER ONE QUESTION OF THE SPECIAL VERDICT FORM
Defendant also contends that the jury's failure to answer question number 5
EXCESSIVE DAMAGES
Defendant's final contention is that the damages awarded by the jury are excessive because the amount awarded is contrary to the evidence presented and, therefore, the jury must have relied upon an erroneous basis. As stated earlier, the jury awarded plaintiff $84,000.00 in damages. We begin our inquiry by reiterating this court's often-quoted rule that "[b]efore a duly returned verdict of a jury will be set aside as excessive, it must appear it is `so' excessive as to denote passion, prejudice, bias, or some erroneous basis." State Highway Commission v. Peters, Wyo., 416 P.2d 390, 391 (1966).
In support of this contention, defendant argues that while the evidence showed that plaintiff had already incurred $2,522.85 in medical expenses and that he would have future medical expenses arising out of the injuries that he suffered, it was shown "that if the Appellee took care of himself, his troubles would be minimal and in fact, the Appellee could pursue his chosen career of a school teacher." Defendant also takes issue with the fact that plaintiff testified that his doctor told him he could not teach school. Defendant points out that plaintiff's doctor testified that "there was no medical reason why he could not teach school."
A review of the record indicates that plaintiff stated that his doctor "suggested strongly that I didn't do it [teach school]." When the doctor was asked upon cross-examination if there was any medical reason why Doyle could not teach school, the doctor's reply was that if plaintiff could walk around and teach then he would be able to teach as long as he did not stand in one spot. The doctor also indicated that after walking for an hour plaintiff would have to prop his leg up.
While the doctor did not directly state during the trial that Doyle could not pursue his chosen profession, it is not very difficult to understand why Doyle felt the doctor was discouraging him from becoming a high school teacher. Doyle, because of his injury would, for example, be unable to stand up and write on the blackboard, or stand by a student's desk to help the student with a problem. And if Doyle spent an hour walking around the classroom, he would then be required to prop up his injured leg. One is left wondering what Doyle would do with his next class while he was propping up his leg.
On cross-examination, Doyle's treating physician was also asked whether it was true that Doyle would "not experience too much discomfort with the leg so long as he takes proper care of the leg." Doyle's physician replied that "[t]here are times when I don't care what kind of care he has given it [his leg] he is going to have problems, but in general, yes."
There is also testimony that Doyle has suffered substantial pain and suffering and that there is an ulceration on his leg that has never healed. Doyle described the wound in the following way:
Doyle also testified that he can no longer play with his children, that his marital life has changed and that he can no longer hunt and fish. There is also evidence that Doyle's loss of earnings was $28,406.00 as of the date of trial.
There is ample evidence presented in the record to support the damages awarded by the jury, and, therefore, we cannot agree with defendant that the jury relied upon an erroneous basis in arriving at an award.
Affirmed.
Comment
User Comments